The following conversation was held over Skype on June 4, 2018. An edited transcript is below.
Durba Mitra (DM): Today as part of Signs’Ask a Feminist series, I have the opportunity to speak about sexual harassment and the #MeToo movement with feminist legal scholar Catharine MacKinnon, a lawyer, writer, teacher, and activist who is Elizabeth A. Long Professor of Law at the University of Michigan Law School and the James Barr Ames Visiting Scholar of Law at Harvard Law School since 2009, and one of the most cited legal scholars in the English language. MacKinnon is the author of numerous books, including the groundbreaking work Sexual Harassment of Working Women: A Case of Sex Discrimination, published in 1979 by Yale University Press, when Professor MacKinnon was completing her PhD at Yale. MacKinnon went on to write the brief and win, as co-counsel, the landmark Supreme Court case Meritor Savings Bank v. Vinson, which established sexual harassment as discrimination. MacKinnon has authored numerous books on critical issues, including Feminism Unmodified ,Toward a Feminist Theory of the State, andAre Women Human? I had the opportunity before this interview to read some of Professor MacKinnon’s research related to her landmark first book in an extraordinary resource, her own papers, acquired by the Arthur and Elizabeth Schlesinger Library on the History of Women in America at the Radcliffe Institute at Harvard. Her study, published almost forty years ago, became the basis of transformations not only in sexual harassment law but in wider discourses that shaped the public perception of the very idea of sexual harassment. Supreme Court Justice Ruth Bader Ginsburg cites MacKinnon’s Sexual Harassment as the landmark study, the foundation for legal debates and social understanding on discrimination on the basis of sex.
So today I wanted to start with you, Professor MacKinnon, in remarks in 1981 at the Capital University Law Review, as you were arguing for sexual harassment as a form of discrimination, you describe how sexual harassment is “the first legal wrong to be defined by women.” I wonder if you could begin by speaking about your time at Yale University when you first became interested in working and writing on sexual harassment as a Title VII violation. How did you define the issue? What were some issues that were circulating around you that influenced your thinking about this question?
Catharine A. MacKinnon (CAM): Well, I was part of the movement for women’s liberation in New Haven that was developing in the United States and around the world. That was the major influence. The specific form that took was, I was in law school, actually…
DM: Oh, sorry.
CAM: You were right that I was finishing the book when I was working on my doctorate, but when I created the legal claim, I was in law school. I heard about the experience of a women named Carmita Wood through women at Cornell University. Carmita Wood had had to leave her job working for Cornell because of the extensive physical and psychological consequences of being viciously sexually harassed by her employer. There was no real term “sexual harassment” as any recognized term of art at the time. I was sitting in on a law school class called “Sex Discrimination and the Law,” and my feeling about the cases at that time, and the way that discrimination was defined, was that if this is what courts thought equality was about, we were never going to have it. It was all about, “were women the same as men in the following ways?” And if and when we were then treated, on the basis of an accident of birth, as if we weren’t, then we could make an equality claim. The way particularly sexuality worked socially as a form of subordination, when it was a form of subordination, was that it was considered a so-called sex difference. That was going to be a big problem — considering sameness as the standard women had to meet — because women’s sexuality wasn’t going to be seen as the same as men’s, and the way men treated women when we were sexually harassed was going to be seen just as a part of the sex difference. “This is just what men do,” so-called, “boys will be boys.” Meaning women will be subordinated by them. And that will be seen as equality, because if you’re really so-called different, and you’re treated differently, that was and actually still is what equality means in law.
Then I heard about Carmita Wood’s situation, I read about it in a newsletter sent by the Cornell Women’s Center. It exploded in my head as, “ Here, finally, this is what sex inequality really looks like.” Not the cases that had been tried in the courts so much, even though there was inequality in those, but they were nothing like this. This was the real paradigm. So that was where I started with redoing sex discrimination law and conceiving the concept and choosing the term “sexual harassment,” which was one of several terms at the time being used for this kind of experience in the women’s movement, although it was a very free-flowing thing. It wasn’t defined in scholarly terms or even journalistic terms, although there was a little bit of journalism about it, which was very helpful at the time — Redbook Magazine in particular. And then there was journalism in the New York Times and Ms. magazine. The organization behind it was first called Working Women United, and my contact there was Karen Sauvigne. She was very helpful, and the organization was as well. It developed from there.
DM: That’s great. I can see from your papers just the extraordinary review of case law that was required to try to define something that had clearly been undefined in the law, and I was interested in hearing you telling us a little bit more about what other legal precedents — like cases about racial discrimination or maybe different from cases of racial discrimination — shaped your argument in the book but also in the Supreme Court case on sexual harassment as discrimination.
CAM: One case called Rogers v. EEOC, [i] a race case, held that segregating patients at a medical facility was a condition of work for the people who worked there that was discriminatory toward them. These were Latinas. What I found most helpful in the race discrimination cases was that line within the racial equality argument that had registered to a powerful extent in some of the law. Nobody was saying anymore, “if you’re a member of this race or that race, then you’re just different, and if you’re treated differently according to that difference, then that is not discrimination, that is what equality looks like.” People didn’t say that about race since segregation. It was understood, to a considerable degree, although it was highly implicit in the law, that there was a social hierarchy called “white supremacy,” and indeed still is such a hierarchy, although the comprehension of it in law fades in and out. But that hierarchical understanding could be discerned at least implicitly in some of the most powerful cases that had been decided on behalf of — actually it was African Americans but also there were cases brought by Asian Americans of particular backgrounds. That was much more helpful than anything in sex equality law, because there was no real understanding of the subordination of women and of male dominance as a system, at the time, or of male supremacy in law. So, the racial cases and their understanding of what inequality really looks like and therefore what equality could be and what it had to be in order to actually be equal in reality, were the more helpful of the case precedents.
CAM: Well, actually the headline that #MeToo has done what the law could not is not what my op-ed says. What it says is that #MeToo has done what the law hadn’t so far done but could and will. I suppose you could say the law couldn’t do it yet because it hasn’t, but it also is inconceivable that there would be a #MeToo movement if everything that is included in the concept of sexual harassment was still as legal as it was forty years ago. In other words, if something isn’t illegal, it’s effectively legal.
DM: Right, and then speaking about it would not effectively have any meaning.
CAM: Right. It was what Gloria Steinam called “just life.” It was exactly “just life.” It was something that women had to live through and figure out each of our own ways around or together with a couple of others. So, there is a real relation between the fact that the law recognized that sexual harassment was an illegal form of sex discrimination, that it encompassed so much of women’s experience of this particular violation within that legal recognition, and the movement. In the forty years of time that has passed, a lot of what’s happened is that the courts have restricted that recognition, in ways of which I’m extremely critical, and made it more difficult, even than it was before, for women to come forward and get relief. A brilliant study by Professor Louise Fitzgerald called “Why Didn’t She Just Report Him?” found that the answer to that question is that women’s lives were worse off, both subjectively and objectively, when they reported being sexually harassed. That’s why they don’t report — because it makes their lives worse.
So just as it is quite inconceivable that we would have had a movement like this if all the actions that have been complained of and reported by the #MeToo movement had been legal for the last forty years, it’s also pretty clear that the law should have recognized a great many of those abuses in ways that it didn’t. Or the people who were violated who are now reporting those violations going back twenty, thirty, or forty years would have been reporting them, and would have been able to get the kind of relief that they should be receiving. So there’s a real positive relationship that the law has had to supporting this kind of movement and protest, and at the same time this movement and protest poses a very clear challenge to the inadequacy of the law’s former response to it.
Also notice that many of the most notable actions coming out of #MeToo are things that the law isn’t set up to do. The legal claim for sexual harassment as a civil right is focused on getting relief for the person abused. It doesn’t even permit, as a strict legal consequence, doing anything to the perpetrator. So what is most remarkable about the present moment is seeing women coming forward and saying what various quite powerful men have done to them and watching other powerful men come to the very swift conclusion — this is what is new here — that they can’t afford to keep these men around or be associated with them or their work product. Their former conclusion was that they didn’t want the women around. That is the big reversal of the present time. The law hasn’t had a direct relation to that, except for the fact that there’s something called “employment at will,” which a lot of us have been critical of for a long time, which allows employers to fire anyone for any reason at all, except for discrimination. So, what we’re seeing here is the power of employers that they’ve always had being used against high-ranking male employees who are being accused of sexual abuse. And all of a sudden, everybody’s saying, “What about due process? Was there an investigation?” It’s important that everybody’s rights are preserved here, but it’s a good time to notice that the employers — unless there is a specific contractual change that governs a particular relationship, or the law is unusually progressive — that legally speaking, in most places anyway, most employers have the legal right to just fire these guys because they’ve been complained of. That they are doing it is the biggest change from this movement that we’ve seen in terms of an actual transformation in the construction of the world: the consequences for the perpetrators.
DM: Right. One of the things that you spoke about in other contexts was the statute of limitations for filing cases in the EEOC. Could you explain that a little bit more to the Signs readers? About how the statute of limitations works?
CAM: The way it works — the way any statute of limitations works — is it’s a time limit from the last time the legally recognized injury was inflicted to the time it was complained about in an official way, either administratively or filed in court in some fashion or a prosecution brought. That time period is called the statute of limitations, between the end of the injury and the beginning of the legal process by the survivor. In criminal law they are sometimes a year, three years, six years. Sometimes there is none — if it’s thought that this is such an outrageous injury. Or it runs from a certain time, like they’ve changed child sexual abuse statutes of limitations now to where sometimes they run from when the person first remembers the injury or first is aware of the harm that the injury caused them — from there, or the age of majority on. So that you can be sexually abused as a child at, say, five, six, or seven years old but your statute doesn’t start until you’re eighteen, and then you have, say, a dozen years, where you’re still legally alive. That’s the way these thing work.
What it means is that there comes a moment in which the legal injury disappears. Goes poof. It evaporates. It is no longer in existence because the time period has run out for its legal recognition. You find then in discrimination law in general, all discrimination law, statutes of limitations constructed by Congress, in federal law, by days: 180 days, 240 days, 360 days, depending on what discrimination statute you’re under. You’re looking at just a few months. They’re the shortest statutes of limitations I have ever seen in law anywhere, for anything. Somebody knows there’s an awful lot of this stuff, and if we recognize it all in court, we might be doing nothing but adjudicating discrimination claims because there’s that much discrimination. The handiest way to control this — they call this “docket control” in courts — is to chop off its existence within a very few days. So, most women — anyone, men as well — who have been sexually violated in any form — this includes sexual harassment in education, sexual harassment at work — most people who have been sexually abused are not in any state to bring a legal claim within days. They’re still in trauma, never mind post-trauma or getting past post-traumatic. They’re still traumatized. What that has meant, along with everything else that discourages doing anything about these injuries, is that by the time the survivor is in any mental condition to do anything about it, the statute of limitations has disappeared the legal existence of their possible claim.
DM: Right. It’s a great possible avenue for advocacy and thinking about the way in which the law and these social movements relate to one another. I just want to think more about the social movement, and think again about the relationship between the law and social movements. And it was Tarana Burke, as you know, an African American civil rights advocate, whose powerful articulation of the endemic nature of sexual harassment and violence in the phrase “#MeToo” was the inception eventually of what we know now is a global social movement. Burke’s work focuses on sexual violence that disproportionately affects people of color, and particularly young girls and women. I wonder if you might reflect on the ways in which you think the role of the law today, or maybe the law in conversation with social movements, sit at the intersection of sexual harassment, violence, and racial discrimination. Do you see a place for the law that could address the concerns of women of color, particularly, people of color more broadly, in working-class contexts — immigrants, especially — who face disproportionate amounts of harassment and sexual violence in working conditions?
CAM: It was actually African American women whose leadership as plaintiffs made possible the recognition of sexual harassment in law in the first place. They are the plaintiffs in all the landmark original cases — my clients, actually. And the fact that they were African American was actually discussed at the time and was part of the way those cases were litigated, in particular in the workplace context — at least in my case, they were. Also, it was understood that as African American women, they were representing women — all women — and that it was as women, particularly African American women but women, that they were sexually harassed and therefore could stand for the term “sex” in “sex discrimination.” So, the term “sex” was essentially argued to embrace all women, including their particularities. In other words, all women have particularities, and those particularities don’t make them less women, they make them who women actually are. And this targeted them for discrimination, and this then was something that the courts were brought to recognize was discriminatory. This was before the brilliant theorization of intersectionality by Professor Kim Crenshaw had occurred. Once that happened, this entire discussion was able to be brought far more explicitly into the more legally express levels of recognition.
As you say, it’s definitely the case that women of color are sexually violated at higher rates than white women, and this includes, in particular in the United States, Native women, indigenous women. But also, all women who are racially subordinated are more frequently targeted for racial discrimination together with sex discrimination, including in sexual ways. Immigrant women, if they are not documented, are in an extremely vulnerable position because the basic dynamic of sexual harassment, which is the threat combined with the sexual demand, then means that they and their entire families are fleeing conditions of violence in many instances, including potentially their murder if they are to be deported back to where they came from. That can be made a condition of sexual delivery. In other words, “Suck my penis or I’ll turn you into the ICE.” [ii] That threat has long existed, but the precariousness of increased pressure on those communities has made that an even more effective tool for sexual violation.
Basically any form of unequal power has the same structure, which in the United States emphatically obviously includes race and ethnicity, but also class and immigration status. And state power — “the police”: many women of color in particular are sexually violated by police officers who are using the power of the state over them, particularly as women of color, on the bet, which has been a reasonable one to make, that the women wouldn’t be believed. Or if they were believed, that nobody would care that a police officer had violated them. A tremendous amount of the abuse of women of color in the United States by police officers is sexual. Anything that is a form of power, including age, as well as race, ethnicity, class, immigration status — being a doctor, being a teacher, being an employer — all of those are used to get the drop on people. And it’s multiply the case that the drop is gotten on women of color. It’s a matter of how many hierarchies you’re under that enhances your vulnerability to this form of abuse. And so far as the law goes, it only really recognizes sexual harassment in employment and in education. That is because we have equality rights there. We have those because of the black civil rights movement got equality rights there and sex was added. Nondiscrimination is also guaranteed in federal housing, actually, and in public accommodations. In housing, there is a whole cluster of sexual harassment cases; imagine your sexual harasser has the key to your apartment. The point being, we don’t have equality rights in other areas.
DM: Right, like immigration law.
CAM: Yes, like the immigration context: it should be, but it isn’t recognized. It should be with regard to police officers. It should be in prisons, for example. But it hasn’t been adequately recognized, despite even being against the criminal law in some states. And then all these other civil contexts where perpetrators don’t have state power but just have social hierarchal power, as in white supremacy. Outside these statutes, that inequality is not recognized at all by discrimination law.
DM: I think there is an understanding, particularly among younger generations — certainly people that I teach and think with — that sexual harassment has much more reach in the law than just employment and, as you said, housing. That was very clarifying, I think, just to give a sense of how sexual harassment works and its reach.
Alongside the #MeToo movement in the last year, there has been ongoing political and social movements testifying to the issues related to trans communities, transgender communities, gender nonbinary people, who, according to many studies, disproportionately experience issues of sexual harassment and sexual violence. As you have argued in other contexts and have established, the law at points has determined gender-based discrimination in the workplace includes gay bashing and homophobia. And while your advocacy initially saw sexual harassment as a women’s issue, in the notes to your Sexual Harassment of Working Women, you also note that “there might be a need to protect all people from the abuses of their sexuality.” So, I wonder whether you might reflect on how you think discrimination on the basis of sex relates to powerful movements for trans rights today. Particularly, how does it relate to issues of access for trans individuals, whether in the workplace or more broadly?
I’ve also argued for the same period of time that trans people are discriminated against based on sex, when discriminated against because they are trans. It couldn’t be more obvious. It’s either the sex they apparently were originally assigned — the idea that they’re not living up to the expectations of that; or it is the fact that they’ve transitioned from one to another, or affirmed the one they saw themselves as originally having been, but mistakenly having been misassigned; or that they are an inadequate representation of the sex they are now being, and, according to them, always were; or that whatever it is that they are doing — if they are non-binary, they’re doing none of the above — that there is something wrong with that. All of that is either biologically based and not accepting that the social standards are discriminating against what you’re seeing in relation to the biology or it is pure, unadulterated sex stereotyping. I’ve been arguing that for about thirty-five years. A federal court finally accepted that argument in a decision drafted by a student of mine, who was clerking for the judge, in a case of a trans woman. That has since become the basis for further such recognitions, which occurred during the Obama administration in administrative law, under discrimination law. A number of cases have gone in that direction since.
To be discriminated against based on being a trans women or trans man is sex-based discrimination. It’s either based on sex per se or it’s based on what is perceived as the lack of fit between gender and sex, and both of those are discrimination. Some have said it is neither but is rather the change. That’s like saying that if somebody converted to Judaism, and then they’re subjected to anti-Semitism, that it isn’t discrimination based on religion, that’s discrimination based on conversion. Everyone knows that’s wrong. The fact that a person can so-called change has never been a reason why, if you’re discriminated against through the status you change to, you’re not discriminated against based on that status. If you convert to a religion and are then discriminated against in some religious way, it’s still religiously based discrimination. The same is true with sexuality. I actually have always kind of loved that parallel because sexuality has a way of being both an identity for folks and giving meaning to life in some respects, like religion, you know? It’s a thing one adheres to yet at the same time is used to hurt people. So, none of those arguments mean that a trans person is not discriminated against based on sex when they are discriminated against based on their trans status.
Then as I say there is the purely non-binary issue, which is a simple issue of sex stereotyping and is very easy to deal with. It just simply means you’re being measured by either standards of masculinity or femininity and found to fall short relative to either of those. That’s already recognized as federal legal claim.
DM: That’s great. Thank you so much. We have in recent months heard much more about the complicity or collusion on the part of institutions in issues of sexual harassment and violence. Indeed, it seems that in case after case, we hear of institutions hiding long-term issues, whether it’s, as you described, coaches or doctors, professors, at Penn State, at Michigan State, and recently at University of Southern California. In a paper you published in 2016 in the Yale Law Journal, you speak about the failures of needing to prove “deliberate indifference” on the part of institutions and the possible uses and effectiveness of international guidelines in opposition to deliberate indifference. Thinking about that paper, but also more broadly, what are some possible forms of accountability for institutions and their role in this endemic issue of sexual harassment and violence?
CAM: The press — mainstream media as well as social media and the combination of the two — has done quite a job on these institutions. That’s a good thing, because the law hasn’t. The main thing that educational institutions are concerned about is actually not money, it’s their reputation. Their status. Their reputation is also long-term money. Their status is everything. If they lose these, they are not long for this world. They know this. So that is their real concern. It used to be that they would be concerned about a possible lawsuit or a trial, but that wasn’t even because they might lose the case. It was because of the exposure that it caused, and how bad it made them look. Well, now they’re getting made to look bad up front. There’s no trial in sight. There’s not even a legal claim brought. In fact, in many cases there could be no legal claims for any number of reasons — not because they aren’t extremely severe. But statutes of limitations, for example — the cases disappear.
With “deliberate indifference,” all the institutions that are covered by that standard, the standard for Title IX — discrimination based on sex in education — all the educational institutions have to do is a little bit more than nothing — something above zero — and they are not “deliberately indifferent.” They don’t have to solve the problem. They don’t have to prevent it from happening again. They don’t have to give real relief to the people involved, even if they found that the accused perpetrator did it. They don’t even have to find anything. They don’t have to find what happened. They just have to look alive a little bit and kind of try. You know, like, have a hearing, do something. This is included in what the scholar Jennifer Freyd has called “ institutional betrayal,” meaning that institutions look to promote themselves as in loco parentis, “in the place of a parent”: “We care about you, we love you.” Sometimes parents sexually abuse children. Sometimes they say they don’t believe children who tell them other people abused them. This is apparently the role schools are aspiring to, because what they are doing is sucking victims into their apparent mantel of protection and then either doing nothing, not believing them, or acting like they’re doing something but not engaging in any actual remedy or protection for them or others in their position.
Institutions often fail to recognize that abuse reported to them under Title IX is a form of discrimination based on sex: it is not personal to “her” and “him.” It happens because of the groups of which they are members, which includes gender. That means he, most probably (it’s not always a man, but often), is going to prey upon others, like the victim, either her or him. And therefore, if the school is going to do any serious protection, it will have to do prevention. They have to do something to stop this guy at the very least. Overwhelmingly, they don’t. Their whole idea is, “Let’s separate the two of them. Let’s,” at most, “give her a little space.” And not doing anything about the systemic nature of the situation — the systemic place that he has in it. He is a representative of a systemic problem, and they don’t treat him like that, typically. They treat him as some valuable scholar who gets big grants for the school. They treat him like he’s a capital asset — like he’s what produces the value they have. Rather than seeing that the school actually is the students. The question is, who is the school? The school typically sees that their interest is that the accused perpetrator is the school, rather than that the students are the school. The schools, once this deliberate indifference rule was articulated in the late 1990s, you could hear the exhale from coast to coast where institutions just went, “Oh phew, all we have to do is look slightly alive here, and nobody can hold us legally accountable for anything to do with sexual harassment.” The bottom fell out. Students had some power before then, and after that, they don’t. Congress really has to change that, I think.
DM: Right. The next question I was going to ask you was on Title IX because of the complications and obviously the debates that have been happening since the education secretary, Betsy DeVos, has decided to pull back on some of the provisions under Title IX that were part of the Obama administration. I was wondering if you would be able to reflect on what you think is happening with Title IX, the use and possible drawbacks of Title IX as it is articulated right now, in terms of sexual harassment and sexual violence issues in educational institutions. I mean, you spoke about some of it.
CAM: Under the Obama administration, under Catherine Lhamon’s leadership in particular (an African American woman, by the way) the Obama administration brought more claims of sex discrimination in education than had ever been cumulatively done. Hundreds of them. This was a response to a movement by survivors on social media. What then came to be called “campus sexual assault,” which, again, for forty years had been illegal, and students had been complaining about it, but absolutely nothing had been done about it except in very isolated circumstances. Suddenly the Obama administration started bringing administrative claims of discrimination against all these schools — which could have been getting brought ever since Alexander v. Yale recognized sexual harassment as a legal claim under Title IX, which we did in New Haven. Pamela Price, an African American woman, was the lead plaintiff ultimately in that case.
From then on, those administrative claims could have been brought. That was 1980. But they weren’t. A few claims were brought in that survivors would complain to the Office for Civil Rights, and then sometimes something would happen, maybe some investigation. But very, very few. When social media made it possible through Know Your IX, specifically the online organization for survivors to connect with each other in ways that they hadn’t been able to do before, a lot of complaints were brought then, and the Obama administration pursued them. That was a major #MeToo-type movement that happened in the past five to ten years. Prior to the current movement in workplace sexual harassment was that movement of recognition of sexual harassment in education.
This now appears to be in the process of being rolled back. The current administration, which gets to make its own policies, has revoked the most important guidances promulgated under the Obama administration. It is apparently pretty determined to do nothing about a lot of situations that seemed to many of us to call for their action.
DM: It’s an interesting moment to have so much public uproar about this question and then at the same time an administration that is retreating from adjudicating these issues or dealing with — as you said, giving guidances around this.
CAM: The president, currently, “45,” it became clear during the electoral campaign, is some kind of perpetrator of these injuries. It has to be that leadership in that direction would be part of the way this administration would develop. Indeed, that is what’s happening.
DM: I’m going to shift gears just a little bit to ask you some questions about international contexts related to the #MeToo movement. Signs, as you know, is an international journal. I’m a scholar who works on the global South. I work on India and South Asia more broadly. In India, as for many parts of the world, as you know, sexual harassment is defined in the law as a heterosexual act that affects only women, in that it names women as the only possible victims. And then across much of the former British Empire like India, and in Pakistan, and in Singapore, for example, sexual harassment appears in criminal codes as “assault or criminal force to a woman with the intent to outrage her modesty,” which is always an interesting articulation. And there’s all sorts of interesting cases around modesty in Indian case law, and of course, in Singapore more recently. But I give these examples to ask, what are some possible ways of thinking about advocacy, at the level of law or otherwise, that take places in the international context that take place around sexual harassment? I thought I might ask you to reflect on some of those international contexts, considering your work in issues of global law.
CAM: My understanding of the Vishakha case is that it wasn’t limited to women in India, and was actually one of the more progressive forerunners of recognition by employers of what needed to be done about sexual harassment by the Supreme Court of India, which, at times, in certain instances anyway, is a very progressive court. Regrettably in this respect, this has changed. [iii] The so-called Eve-teasing thing in India is a bit of an ideological problem. The way I see it is that there is a British moralistic overlay to some of the recognition of sexual harassment, particularly in India, that isn’t reflective of the understanding of the power issues by the Indian women activists who work against it. A similar dynamic occurs with the rape law, including the recent changes in it. Also, it has to be mentioned that no political or legal work that goes on in India these days can take place outside the recognition of the daunting larger political context that is the backdrop for it.
My main work in India involves women in prostitution — that is, prostituted women who are seeking to leave prostitution. Actually most women in the world who are in prostitution — most people who are in prostitution — want to leave it, and say they want to leave it when asked. I bring this up because what is apparent is that sexual harassment makes all legitimate work into forms of prostitution. What it does is it say, “the only way you can economically survive is if you come across sexually.” That pure and simple is prostitution. If you do it together with other real work, that’s sexual harassment. It’s the identical dynamic and the identical consequence in which you basically don’t get to survive economically either. You just have to come across sexually. And when you are in a legitimate workplace, your work is endangered, and you are endangered, and you may lose that job at any time, or it may be impossible for you to stand being in it, at which point you’ve lost your job. So, the demand of sexual access in exchange for economic survival seldom even works as an exchange in that circumstance. It overwhelmingly doesn’t work in prostitution either, where pimps take most of the money that prostituted people they make. Most people in prostitution are pimped, actually. So it typically doesn’t work out in either instance. The link with prostitution as a structural form of the subordination of women, and then its transmutation into sexual harassment at work, just makes clear that this is a much larger structural condition of women in the United States and around the world.
DM: That’s great, thank you. Finally — I’m going to let you go after asking so many of these questions, I so appreciate it — what are your thoughts on keeping the #MeToo movement or, more broadly, these kinds of public conversations moving forward from here?
CAM: The ever-broadening of the social base of the women involved has been a feature of it from the beginning, and is one of the reasons it hasn’t died out. It is not an elite movement. It never has been. And keeping it continuing as a broad-based movement will make a big difference. In particular, I will know we have really gotten to the foundation of some of this when women in prostitution and women who have managed to escape prostitution start calling out the men who have bought them, which is nothing other than sexual harassment in another form. Those men are in power all around the world. They are continuing to be able to buy women and abuse them in any way at all. That will be a #MeToo to watch for, to work for, and to care about. People want to say, “how about women in the restaurant industry?” And you bet! How about them? Having to present themselves sexually in order to get a tip when they’re making two dollars and some cents an hour. Well listen, what that is, is having to prostitute yourself in order to make a living while getting two dollars and something an hour, whereas women in prostitution aren’t getting anything an hour and they’re having to prostitute themselves or be prostituted. So, I look to see the extension to the most sexually violated group of women in the world: women in prostitution. It’s the reason that I proposed the Nordic model, which is now being accepted in a lot of places in the world, which decriminalizes people in prostitution and strongly criminalizes not only pimps and traffickers but buyers. Prostitution happens because there are people, mostly men, who are looking to buy a person to use sexually. Their money is the engine that makes it go forward. There would be no pimps if there were no buyers. The pimps are in it because a profit can be made by selling the women to what we call in the United States the johns or the tricks or the dates. Criminalizing them has turned out to be a very effective way to stop trafficking in the Nordic countries that have adopted this approach. It’s been accepted in France, it’s adopted in Canada, and is in the process of undoing prostitution worldwide, much to the panic of sex buyers and the sex industry internationally. So, to me, when this argument and this understanding that women shouldn’t have to be sexually available in order to survive economically, which is the core understanding of sexual harassment law, is actually applied to those women on whom that dynamic is imposed now in its pure form, in its unadulterated form, that is to women in prostitution, that will be the real moment of liberation of women that #MeToo has prepared.
DM: Thank you so much for your time and speaking with us today for Ask a Feminist.
CAM: Thank you. Thank you for your insightful questions.
Catharine A. MacKinnon is Elizabeth A. Long Professor of Law at the University of Michigan and James Barr Ames Visiting Professor of Law at Harvard Law School (since 2009). She holds a B.A. from Smith College, a J.D. from Yale Law School, and a Ph.D. in political science from Yale, specializing in equality issues, especially sex equality, under international and domestic (including comparative, constitutional, and criminal) law and in political theory.
Durba Mitra is Assistant Professor of Women, Gender, and Sexuality and Carol K. Pforzheimer Assistant Professor at the Radcliffe Institute at Harvard University. Mitra works at the intersection of feminist and queer studies. Her research and teaching focus on the history of sexuality, the history of science and medicine, and women and gender in the colonial and postcolonial world. In her current book project, Mitra examines the central place of sexuality in the development of the social sciences in India and across the colonial world. Mitra’s research has appeared in Economic and Political Weekly,History and Technology, and Feminist Studies, and has been supported by fellowships at the Penn Humanities Forum at the University of Pennsylvania, Bowdoin College, and as a Fulbright-Nehru Scholar to India.
This interview was originally published by Signs.
[i] Equal Employment Opportunity Commission.
[ii] Immigration and Customs Enforcement.
[iii] The Vishakha Guidelines were superseded by a new law against sexual harassment in 2013, the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,” which is a gender specific and can only be applied in the case of harassment of women, but not for sexual minorities, transgender people, nonbinary people, or men.
